Federal Court deals blow to early release of Palace Papers

Letters shedding light on what Buckingham Palace knew in the lead-up to the dramatic Dismissal of the Whitlam government will remain secret until at least 2027, after a political historian lost a Federal Court battle with the National Archives to access the documents.

On Friday Justice John Griffiths ruled the letters between Sir John Kerr and the Queen before and after the Dismissal in November 1975 were correctly classified by the National Archives as "personal records", and therefore outside a statutory regime that may have allowed earlier access to the documents.

The eldest son of Gough Whitlam, Antony Whitlam, QC, headed a legal team acting in the Federal Court for Monash University Professor Jenny Hocking, a historian who brought the legal challenge to access letters and telegrams between Sir John Kerr and the Queen sent between August 1974 and December 1977.

Professor Hocking has written extensively on Labor figures including Gough Whitlam and former High Court Justice Lionel Murphy, who served as Attorney-General during the Whitlam government.

The National Archives of Australia had refused to release the correspondence – which also included letters between Sir John and the Queen's private secretary, as well as Prince Charles – on the basis they were "personal" letters rather than Commonwealth records.

Classifying the documents as personal records meant they were embargoed until at least 2027, as stipulated by Sir John's estate, with the Queen holding a final veto over their release.

Professor Hocking's legal team argued the documents were not personal records but Commonwealth records subject to a statutory regime for release under the Archives Act.

Gough Whitlam on the day of the Dismissal as Prime Minister on November 11, 1975.

Mr Whitlam jnr argued unsuccessfully that personal records would be limited to documents unrelated to the performance of Sir John's official duties, such as medical records.

If Professor Hocking's legal team had been successful, the National Archives may still have been able to argue an exemption applied under the Archives Act to keep the documents secret.

Summarising his judgment in court on Friday, Justice Griffiths said that while there was a "clear public interest" in the content of records relating to "one of the most controversial and tumultuous events in the modern history of the nation", the legal issues did not require a consideration of the public interest.

He found the National Archives did not fall into error by classifying the documents as Sir John's personal property, rather than the property of the Commonwealth or the official establishment of the Governor-General.

Professor Hocking said outside court the decision was "obviously disappointing" and "the mystery continues".

"The Palace letters remain secret," Professor Hocking said.

She urged Malcolm Turnbull to "advise the Queen" to release the "critical documents in our history in Australia".